Delhi High Court
Harvinder @ Arvind vs State Of Nct Of Delhi on 25 August, 2025
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 28.07.2025
Pronounced on : 25.08.2025
+ CRL.A. 157/2023
HARVINDER @ ARVIND .....Appellant
Through: Mr. Shri Singh, Mr. Syed Arham
Masud, Mr. Vikhyat Oberoi, Mr.
Wasif Naushad and Ms. Surabhi,
Advocates.
Versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Pradeep Gahalot, APP for State
with SI Paramjeet, P.S. Rnhola.
Ms. Vrinda Bhandari, Advocate
(DHCLSC) for prosecutrix with Ms.
Anandita Rana, Ms. Vanshita Gupta
and Ms. Pragya Barsaiyan,
Advocates.
AND
+ CRL.A. 341/2023
LALU .....Appellant
Through: Ms. Manika Tripathy, Mr. Gautam
Yadav and Mr. Aakash Mohan,
Advocates with appellant/Lalu.
versus
STATE .....Respondent
Through: Mr Pradeep Gahalot, APP for State
with SI Paramjeet, P.S. Rnhola.
Ms. Vrinda, Bhandari, Advocate
Signature Not Verified
Digitally Signed CRL.A. Nos.157/2023& 341/2023 Page 1 of 13
By:GAUTAM ASWAL
Signing Date:26.08.2025
18:57:07
(DHCLSC) for prosecutrix with Ms.
Anandita Rana, Ms. Vanshita Gupta
and Ms. Pragya Barsaiyan,
Advocates.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. The present appeal has been filed under Section 374 of CrPC against
the judgment of conviction dated 24.11.2022 and order on sentence dated
17.01.2023 in Session Case No.56489/2016 arising out of FIR No. 01/2015
registered under Section 376/34 IPC at P.S. Ranhola, Delhi.
Vide the impugned judgement, appellants stand for the offence punishable
under Section 376D/120B IPC and vide order on sentence, the appellants
were sentenced to undergo RI for 20 years for the offence under Section
376D IPC with fine of Rs.10,000/- and in default of payment of fine to
further undergo SI for 6 months; appellants have been further sentenced to
undergo RI for 20 years for the offence under Section 120B IPC with fine of
Rs.10,000/- and in default of payment of fine to further undergo SI for 6
months. Benefit of Section 428 Cr.P.C. has been given to the appellants and
all the sentences have been directed to run concurrently.
2. While the sentence of appellant/Harvinder was suspended on
20.03.2025, sentence of appellant/Lalu was suspended on 05.05.2025.
3. The underlying facts leading to the registration of above FIR(Ex.PW-
2/A) were noted by the Trial Court are as under:-
“The aforesaid FIR was registered on the complaint made by
prosecutrix “G‟(identity is withheld to protect the interest of
prosecutrix) in police station on 01.01.2015, wherein it is stated that
she received the call from unknown number on 23.12.2014 and onSignature Not Verified
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By:GAUTAM ASWAL
Signing Date:26.08.2025
18:57:07
enquiry, caller stated himself Lalu son of chachia sasur of
prosecutrix and told her that he would get her a job on which
prosecutrix asked accused Lalu to come at her residence and
accused Lalu along with accused Harvinder (son of mausisaas) came
at her house i.e. Vikas Nagar at about 05.00 pm and both of them
stayed there at night and on 24.12.2014, at about 9.30 am they left
the residence of prosecutrix and on 29.12.2014, accused Lalu made
a call to prosecutrix asking her to come near Uttam Nagar Metro
Station as he wanted to talk with her for five minutes and but father
of prosecutrix denied her to go there and after that prosecutrix left
for her factory where she was working and while she was on the
way, accused Lalu again made her call again asking her to come at
Uttam Nagar Metro Station and when she reached there, accused
Harvinder met and he asked her to accompany him to Bhajanpura
and told her that he would get her employed and accused Lalu would
also be present there and accused Harvinder took her the metro to
Bhajanpura and when they reached at a room there, accused Lalu
met them and accused Harvinder offered her hot milk that she
refused as she was allergic to milk but at the insistence of accused
Lalu, she consumed the same, due to which her stomach got upset
and both the accused bolted the room from inside on the pretext of
cold weather and thereafter accused Harvinder kept his hand on her
mouth and opened her salwar forcefully and committed „rape upon
her without her consent and thereafter accused Lalu also committed
rape upon her and on her asking to go at her house, both the accused
told her to sleep and go on next day and on 30.12.2014, at 10.00 am,
both of them made the prosecutrix sit in an auto and at 12.30 pm, she
reached at her house where she told her father that she had gone for
her tau house and she did not disclose anything to her father due to
fear and her father got complaint made at police station cancelled
and on 01.01.2015, she told her father about the rape being
committed upon her by accused Lalu and Harvinder and her father
took her to PS.”
4. In the trial, the prosecution examined 8 witnesses including the
prosecutrix (PW1), her father V.P. (PW3), Dr. Neha Saluja (PW6) who
conducted the MLC(Ex.PW-3D/A) and Dr. Suminder Kaur (PW8), Sr.
Forensic Chemical Examiner, who proved the DNA report (Ex.PW7/PX-1 to
Ex.PW7/PX-3). Appellants in their statement under Section 313 Cr.P.C.,
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took a defence that they had friendly relations with the prosecutrix and were
falsely implicated at the behest of her husband, who is their cousin.
5. Ms.Manika Tripathy, learned counsel for the appellant/Lalu, while
assailing the impugned judgment, contended that the prosecutrix suppressed
material facts and, dehors that, turned hostile in her cross-examination. Even
the father of the prosecutrix, examined as PW3, did not support the
prosecution case. Further, the MLC was recorded two days after the
incident also does not lend any support to the prosecution case.
6. Mr. Shri Singh, learned counsel for the appellant/Harvinder,
additionally contended that the trial court erred in relying upon the DNA
Report as the expert witness had stated that statistical analysis was not
performed and, in this regard, he has referred to the decision rendered in
Rahul v. State (NCT of Delhi), reported as (2023) 1 SCC 83.
7. Per contra, learned APP for the State, duly assisted by Ms. Vrinda
Bhandari, Ld. Counsel for the complainant, while defending the impugned
judgment, highlighted the time gap between the examination-in-chief and
cross-examination. Attention is also invited to the re-examination carried
out by the Ld. APP wherein the prosecutrix again reiterated the version in
her testimony.
8. A perusal of the Trial Court Record would show that the FIR was
registered on 01.01.2015 and her statement under Section 164
Cr.P.C.(Ex.PW-1/F) was recorded on 03.01.2015. In the complaint, the
prosecutrix stated that, her marriage was solemnized on 07.05.2014 and she
lived in her matrimonial home for about two months whereafter her husband
on the occasion of „Bhai Dooj‟ dropped her at her parental house and never
returned. The examination-in-chief of the prosecutrix was recorded on
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By:GAUTAM ASWAL
Signing Date:26.08.2025
18:57:07
05.10.2015 and on the said day, the prosecutrix deposed that she had
received a telephonic call on 23.12.2014 from an unidentified number. On
enquiry, the caller told her that he was Lalu, her brother-in-law (devar) who
promised to get her a job. She invited them to come to her parental house,
where she was living. Appellant/Lalu accompanied by Harvinder (another
cousin of husband of the prosecutrix) visited and stayed overnight at the
parental house of the prosecutrix. The prosecutrix further deposed that on
29.12.2014, she received another phone call from appellant/Lalu asking her
to come to Uttam Nagar Metro Station. Prosecutrix went to the said metro
station, where she met the accused/Harvinder, who took him to a flat at
Bhajanpura, where she met appellant/Lalu. She was offered milk and
despite her reluctance, she was made to drink the same on which, she
suffered dysentery. The appellants thereafter raped her. Her examination-in-
chief was deferred and thereafter continued on 30.05.2016 when she further
deposed that on the night of the incident, she remained at the said place and
the next day, she reached her house. Thereafter, she narrated the incident to
her parents, who took her to the police station, where the complaint (Ex.PW-
1/A) was lodged. She identified her signatures on the MLC (Ex.PW-1/E) as
well as the statement recorded under Section 164 Cr.P.C.
9. The cross-examination was deferred on 30.05.2016 and eventually
carried out on 26.09.2016. During cross-examination, the prosecutrix
admitted to the suggestion that there was a quarrel between her husband and
the appellants. She resiled from the allegations of rape and rather stated that
on the day of the incident, she had gone to her uncle (Tau) Chander Pal on
account of altercation with her husband, who had come to her parental home
on 29.12.2014. On 30.12.2014, her husband took her from her Tau’s place
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By:GAUTAM ASWAL
Signing Date:26.08.2025
18:57:07
and brought her back to her parental home. She further stated that on
01.01.2015, the complaint against the appellants was made at the behest of
her husband. She further deposed that even at the time of recording the
statement under Section 164 Cr.P.C. before the Ld. M.M., she was
accompanied by her husband and made the statement under his pressure.
10. Ld. APP for the State sought permission of the Trial Court to re-
examine the prosecutrix, and she was re-called for the said purpose on
23.10.2017. During her re-examination, she admitted the suggestion that her
statements recorded on 30.05.2015 and 05.10.2015 by the Ld. Magistrate
was administered on oath to speak truth and both days, she stated the correct
facts and did not conceal anything from the Court. On this, another
opportunity was granted to the appellants to cross-examine the prosecutrix,
which they did not avail.
11. At this stage, this Court has gone through the daily proceedings of the
Trial Court, and perusal of the same would reflect that on receipt of the FSL
Report, an application under Section 311 Cr.P.C. was preferred by the
appellants to enable them to put the FSL Report to the prosecutrix. The Trial
Court in the order dated 11.03.2022, noted that FSL/DNA Report was
exhibited, as on 18.01.2021 as learned defence counsel had given his no
objection to the exhibition of the same. Moreover, opportunity was granted
to the appellants to summon the expert, however, the opportunity was not
availed. In the application filedon 20.12.2021 seeking recall of PW1, the
prayer was restricted to cross-examine the prosecutrix limited to the aspect
of consent for sexual intercourse. Though initially the FSL Report was not
put to the prosecutrix, however, later on 22.09.2021, noting the aforesaid,
additional statements of the appellants were recorded and further
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By:GAUTAM ASWAL
Signing Date:26.08.2025
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opportunity was given to the appellant to lead defence evidence. Nothing
has been pointed out by the learned counsels, that this opportunity was
availed.
12. The issue that arises before this Court is whether, in the above facts,
the testimony of the prosecutrix can be held to be credible and reliable.
Learned counsels for the appellants have tried to impress upon the Court that
the prosecutrix and her father, having turned hostile, their examination-in-
chief is unreliable. In furtherance of said submissions, reference was earlier
made to the CDR details of the mobile phones of the prosecutrix and the
appellant/Lalu, collected during the investigation, to contend that there were
regular calls between them on the days prior to and after the alleged
incident. On this aspect, it is noted that there were calls between the
prosecutrix and appellant/Lalu from 20.12.2014 onwards. The call on
23.12.2014 is distinctively mentioned by the prosecutrix in her examination-
in-chief. The appellants are not strangers and are related to her husband.
Even on 29.12.2014, the prosecutrix had received a call from the
appellant/Lalu, which rather corroborates her testimony. It is trite law that
the evidence of prosecution witnesses who turn hostile cannot be washed off
or rejected in toto. The evidence merits closer scrutiny and the portion of the
evidence which is consistent with the case of the prosecution or defence can
be relied upon. After employing caution and separating the truth from the
exaggeration, lies and improvements, the Court can come to the conclusion
that the residuary evidence is sufficient to secure a conviction. Whether the
testimony of the hostile witness can be relied upon stands answered by the
Supreme Court in Selvamani v. State Rep. by the Inspector of Police
reported as 2024 SCC OnLine SC 837, wherein it has been held as under: –
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By:GAUTAM ASWAL
Signing Date:26.08.2025
18:57:07
“10. This Court, in the case of C. Muniappan and Others v. State of
Tamil Nadu10, has observed thus:
“81. It is settled legal proposition that :(Khujji case, SCC p. 635,
para 6) „6. … the evidence of a prosecution witness cannot be
rejected in toto merely because the prosecution chose to treat him as
hostile and cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record altogether but
the same can be accepted to the extent their version is found to be
dependable on a careful scrutiny thereof.‟
82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360]
this Court held that (at SCC p. 363, para 7) evidence of a hostile
witness would not be totally rejected if spoken in favour of the
prosecution or the accused but required to be subjected to close
scrutiny and that portion of the evidence which is consistent with the
case of the prosecution or defence can be relied upon. A similar view
has been reiterated by this Court in BaluSonba Shinde v. State of
Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab,
(2006) 13 (2010) 9 SCC 567 : 2010 INSC 553SCC 516], Radha
Mohan Singh v. State of U.P.,(2006) 2 SCC 450], Sarvesh Narain
Shukla v.Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v.
State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect that the evidence of
a hostile witness cannot be discarded as a whole, and relevant parts
thereof which are admissible in law, can be used by the prosecution
or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal
(PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has
been taken into consideration by the courts below strictly in
accordance with law. Some omissions, improvements in the evidence
of the PWs have been pointed out by the learned counsel for the
appellants, but we find them to be very trivial in nature.
85. It is settled proposition of law that even if there are some
omissions, contradictions and discrepancies, the entire evidence
cannot be disregarded. After exercising care and caution and sifting
through the evidence to separate truth from untruth, exaggeration
and improvements, the court comes to a conclusion as to whether the
residuary evidence is sufficient to convict the accused. Thus, an
undue importance should not be attached to omissions,
contradictions and discrepancies which do not go to the heart of the
matter and shake the basic version of the prosecution’s witness. As
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By:GAUTAM ASWAL
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the mental abilities of a human being cannot be expected to be
attuned to absorb all the details of the incident, minor discrepancies
are bound to occur in the statements of witnesses. Vide Sohrab v.
State of M.P., (1972) 3 SCC 751, State of U.P. v. M.K. Anthony,
(1985) 1 SCC 505, BharwadaBhoginbhaiHirjibhai v. State of
Gujarat, (1983) 3 SCC 217, State of Rajasthan v. Om Prakash,
(2007) 12 SCC 381, Prithu v. State of H.P., (2009) 11 SCC 588,
State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 and State v.
Saravanan, (2008) 17 SCC 587″
13. In the present case also, it appears that, on account of a long gap
between the examination-in-chief and cross examination, the
witnesses were won over by the accused and they resiled from the
version as deposed in the examination-in-chief which fully
incriminates the accused. However, when the evidence of the victim
as well as her mother (PW-2) and aunt (PW-3) is tested with the FIR,
the statement recorded under Section 164 CrPC and the evidence of
the Medical Expert (PW-8), we find that there is sufficient
corroboration to the version given by the prosecutrix in
her examination-in-chief.”
13. Records would reveal that the prosecutrix has maintained consistency
in relation to the material facts of the offense across multiple stages. She has
consistently stated that she was contacted by appellant/Lalu on 29.12.2014,
was taken by appellant/Harvinder to Bhajanpura on the pretext of a job, was
given milk after which she felt uneasy, and was thereafter raped by both
appellants. This version is recorded in the initial complaint on 01.01.2015
(Ex PW1/A), her brief description of the incident in the MLC (Ex. PW1/E)
prepared on. 01.01.2025, her statement under Section 161 CrPC dated.
01.01.2025, her statement under S. 164 CrPC recorded on 03.01.2015 (Ex
PW1/F), and her examination-in-chief recorded on 05.10.2015 and
30.05.2016). It was only in her cross examination which was recorded on
26.09.2016 i.e. almost a year later that she turned hostile. Pertinently, when
she was re-examined on 23.10.2017, she again re-affirmed her earlier
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version and stated that she had deposed truthfully during her examination-
in-chief on 05.10.2015 and 30.05.2016. Thus, overall, she has remained
consistent and the cross-examination appears to be a lone aberration. Her
entire testimony cannot be effaced from the record only on this account. In
this regard, it has been held by the Supreme Court in Khujji v. State of M.P.,
reported as (1991) 3 SCC 627 that:-
“6. …But counsel for the State is right when he submits that the
evidence of a witness, declared hostile, is not wholly effaced from the
record and that part of the evidence which is otherwise acceptable
can be acted upon. It seems to be well settled by the decisions of this
Court — Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 :
1976 SCC (Cri) 7 : (1976) 2 SCR 921] , Rabindra Kumar
Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 :
AIR 1977 SC 170] and Syad Akbar v. State of Karnataka [(1980) 1
SCC 30 : 1980 SCC (Cri) 59 : (1980) 1 SCR 95] — that the evidence
of a prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-examined
him. The evidence of such witnesses cannot be treated as effaced or
washed off the record altogether but the same can be accepted to the
extent their version is found to be dependable on a careful scrutiny
thereof.
7. …The High Court came to the conclusion and, in our opinion
rightly, that during the one month period that elapsed since the
recording of his examination-in-chief something transpired which
made him shift his evidence on the question of identity to help the
appellant. We are satisfied on a reading of his entire evidence that
his statement in cross-examination on the question of identity of the
appellant and his companion is a clear attempt to wriggle out of
what he had stated earlier in his examination-in-chief. Since the
incident occurred at a public place, it is reasonable to infer that the
street lights illuminated the place sufficiently to enable this witness
to identify the assailants. We have, therefore, no hesitation in
concluding that he had ample opportunity to identify the assailants
of Gulab, his presence at the scene of occurrence is not unnatural
nor is his statement that he had come to purchase vegetables
unacceptable. We do not find any material contradictions in his
evidence to doubt his testimony. He is a totally independent witnessSignature Not Verified
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who had no cause to give false evidence against the appellant and
his companions. We are, therefore, not impressed by the reasons
which weighed with the trial court for rejecting his evidence. We
agree with the High Court that his evidence is acceptable regarding
the time, place and manner of the incident as well as the identity of
the assailants.”
14. Moreover, even when the prosecutrix and her father turned hostile,
their versions don’t inter se match each other. The prosecutrix had
mentioned that her husband had come to her parental house on 29.12.2014
and on account of an altercation between them, she had went to the
residence of her Tau from where her husband had recovered her a day later.
However, the father of the prosecutrix has not stated the factum of her
husband coming to their home and an altercation taking place either in his
deposition or in his statement to the police.
15. Though much was contended on the aspect of communication dated
30.12.2014 addressed to P.S. Ranhola by the father of the prosecutrix
wherein he had stated that his daughter came back from her tau’s home and
he does not want any further action. The appellants’ reliance on this
communication is misplaced as the prosecutrix has explained that she had
returned on 30.12.2014 to her parental home however, disclosed about the
incident only on the next day as on the date of writing of communication on
30.12.2014, the father of the prosecutrix was not aware of the incident.
16. Moreover, the FSL report would show that the mixed DNA profile
generated from vaginal secretions, vulval swab, washing from vagina,
cervical mucous collection etc of the prosecutrix matched that of
appellant/Lalu and partially matched that of appellant/Harvinder. The
appellants have raised a contention that since statistical analysis on the DNA
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samples was not performed during the preparation of the FSL report, the
same could not be relied upon. In this regard, reference has been made to the
decision in Rahul v. State (Supra), which in turn, further places reliance on
the decision of Supreme Court in Manoj & Ors v State of Madhya Pradesh,
decided on 20.05.2022 in Criminal Appeal Nos. 248-250 of 2015. However,
in both of those cases, not much reliance was placed on the DNA reports for
different reasons. While in Rahul (Supra), doubts were raised on the
collection and sealing of the samples which were sent for examination, in
Manoj (supra) recoveries were held to be suspect and likely to be
contaminated.
17. It is pertinent to note that questions in this regard were put to Dr.
Suminder Kaur, who was examined as PW8 and was posted at FSL Rohini
as Sr. Forensic Chemical Examiner (Asstt. Director) at the time when the
FSL report in the present case came to be prepared. She categorically stated
that the report was prepared as per the standard operating procedure laid
down by the Directorate, FSL and that statistical analysis was not the part of
SOP till the data base was maintained. She further stated that even without
statistical analysis, her report could be relied upon, as she had given
autosomal and Y filer genotype data. She denied the suggestion that the
report was unscientific or incomplete.
As noted earlier, the FSL report was exhibited on no objection by the
appellants. After the same was exhibited, due opportunities was given to the
appellants to give additional statements under Section 311 CrPC and their
applications to recall PW-1 as well as summoning of the forensic expert was
allowed, the expert had explained the basis for his conclusion. Moreover,
another opportunity was given to again lead defence evidence, however, the
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appellants chose not to do so.
18. On an overall view of the facts and circumstances, it appears that after
subjecting the testimony of the prosecutrix to close scrutiny, the residuary
evidence which remains after dealing with the version where she turns
hostile, is by itself enough to secure a conviction against the appellants.
19. This Court with the aid of learned counsels has thoroughly examined
the records and finds no reason to differ with the conclusive arrived by the
trial court. Consequently, the appeal is dismissed and the impugned
judgment convicting the appellants as well as the order on sentence are
upheld. The appellants’ bail bonds are cancelled and their sureties stand
discharged. They are directed to be taken into custody to serve the
remainder of their sentence.
20. Copy of the judgment be communicated to the Trial Court, as well as
concerned Jail Superintendent for information and necessary compliance.
MANOJ KUMAR OHRI
(JUDGE)
AUGUST 25, 2025
ga
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